State Consumer Disputes Redressal Commission
Sachin Chaudhary vs Dr Ashok Kumar on 28 February, 2022
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 Complaint Case No. C/2009/10 ( Date of Filing : 05 Mar 2009 ) 1. Sachin Chaudhary a ...........Complainant(s) Versus 1. Dr Ashok Kumar a ............Opp.Party(s) BEFORE: HON'BLE MR. Rajendra Singh PRESIDING MEMBER HON'BLE MR. SUSHIL KUMAR JUDICIAL MEMBER PRESENT: Dated : 28 Feb 2022 Final Order / Judgement Reserved State Consumer Disputes Redressal Commission U.P. Lucknow. Complaint Case No.10 of 2009 1- Sachin Chaudhary s/o Sri Samarpal Singh, 2- Samarpal Singh s/o Late Sri Ram Singh, Both R/oVill., Samadpur Post, Sadarpur, Distt. Moradabad. ...Complainants. Versus 1- Dr. Ashok Kumar 2- S.S. Nursing Home through its Managing Director, Address- State Bank Colony, Civil Lines, Moradabad. 3- Branch Manager, National Insurance Co. Ltd., 2nd Floor, Vardhman Plaza, Garh Road, Meerut. ...Opposite parties. Present:- 1- Hon'ble Sri Rajendra Singh, Member. 2- Hon'ble Sri Sushil Kumar, Member. Sri Anil Kumar Mishra, Advocate for the complainant. Sri Vikas Agarwal, Advocate for Opposite Parties no.1 & 2. Sri Alok Kumar Singh, Advocate for Opposite Party no.3. Date : 31.3.2022 JUDGMENT
Per Sri Rajendra Singh, Member- This complaint has been filed by the complainants with prayer to direct the opposite parties for making payment of Rs.23,06,000.00 with interest @18% and also Rs.15,000.00 as costs.
In short, the brief facts of the Complaint case are that, that the complainant no.1 Sachin Chaudhary was suffering from stomachache and on 31.1.2008 he consulted the doctor opposite party no.1 who after taking fee of Rs.200.00 physically examined him and prescribed several medicines. The complainant got some relief but on 7.3.2008, the complainant again felt pain in his stomach and then he consulted the opposite party doctor who again charged his fee and prescribed some medicines. The complainant did not get any relief, therefore, he again consulted the doctor on (2) 13.2.2008. The doctor, after examination, told him that he has problem of appendix which is a part of intestine and it will require removal under surgery. The complainant was under continuous treatment of the opposite party doctor and visited his hospital on 18.2.2008, 26.2.2008 and 5.3.2008 and took medicines as per prescription from time to time.
On 13.3.2008, the complainant no.2 asked the doctor that even after a month his son did not get any relief. Thereafter, the complainant was admitted in the hospital on 13.3.2008 for operation. The doctor did not conduct any pathological tests for confirmation of the problem nor conducted any other tests and told that it is a minor operation and the patient will be normal within 3-4 days.
In the night of 13.3.2008, the doctor performed the operation and removed the appendix. After 30 minutes, the complainant was shifted to the general ward and the doctor told that everything is normal. On 14.3.2008, the complainant felt severe pain and bleeding started from the operation side. He immediately informed the doctor who told that dressing is needed. Dressing was done but after 3-4 hours the complainant again felt severe pain. This time the doctor came and angrily asked him to take the medicines. In the night, bleeding started again but the doctor did not turn up. On 15.3.2008, the doctor again did the dressing and came to know that some mistake has been done by him. The doctor went away and the complainant was under severe pain and suffering. The complainant no.2 heard that the doctor was discussing with some other doctors on telephone and was admitting his fault. It caused an apprehension in the mind of Complainant that something wrong has happened. After that (3) the doctor told the complainant no.2 that second operation is needed. Hearing it the complainant no.2 shocked but he permitted second operation to save the life of the complainant no.1. The doctor-opposite party no.1 on 16.3.2008 conducted blood test and asked complainant to arrange blood. The doctor conducted the second operation and came out from the operation theatre after an hour and told that everything is fine. But for the precaution the complainant was kept in ICU. In the night, the condition of the complainant no.1 has became very critical and the doctor called the complainant no.2 and told him that the patient requires ventilator because the condition of the patient is deteriorating.
The doctor also advised him and referred him to Sri Sai Hospital. In the midnight about 1 a.m. on 17.3.2008, the opposite party shifted the patient in their ambulance to Sri Sai Hospital for ventilator facilities. In Sri Sai Hospital, doctors conducted all pathological tests and started treatment but there was no improvement. The condition of the patient was continuously deteriorating and it became very critical on 18.3.2008 and then the doctor of Sri Sai Hospital advised the complainant to shift the patient to Delhi. On the advice of Sri Sai Hospital, the complainant no.2shifted the complainant no.1 to Fortis Hospital, Noida where he was admitted in ICU and his treatment immediately started. After thorough medical checkup and examination, the doctors diagnosed "Septicemia" in the abdomen region as well as in intestine. The doctor told that during the first operation serious negligence has been committed and to rectify that mistake, the second operation was done but they delayed to rectify the mistake that is why "Septicemia" developed. The condition of (4) the complainant was very critical and there was minimum hope.
The opposite party has diagnosed the disease as Appendix problem and done Appendectomy. It was very minor operation in the term of medical literature. In the operation stomach has been opened only 1 to 2 inch and appendix, which is extra part of the intestine, is removed. But in the instant case the opposite party Dr during the stitching has committed negligence. Either he left some instrument inside or left some bleeders without the stitching. Due to which the intestinal secretions flowed into the stomach and doctor could not understand his mistake in proper diagnosis and therefore septicemia developed. In second operation, the doctor/ opposite party tried to rectify his mistake, but it was late. This is great negligence on the part of doctor. For such critical condition of the complainant no.1 the opposite party is only liable.
The doctors of Fortis Hospital has done hard work and adopted all modes of treatment to save the life of complainant no.1. On the mercy of God and team approach of doctors, the condition of the complainant came into control after two days. The complainant has suffered great mental torture and harassment during this one month travelling from Moradabad to Delhi, for which the opposite party is liable. After 10 days of continuous treatment the condition of the patient became normal and the complainant no.1 has got second life. At the time of discharge of the patient, the doctor of Fortis advised that one year continuous treatment and medication is required, because such type of bacterial infection may develop at any time. Due to negligence of opposite party, the complainant has suffered such mental agony and huge (5) financial loss amounting to Rs.56,000 as expenses for the treatment in the opposite party Hospital and thereafter about Rs.55,000 in treatment, tests and medical expenses in Sri Sai Hospital, more than Rs.10,000/- has been expended in ambulance and more than Rs.250,000/- incurred in the treatment and other expenses paid by the complainant no 2 in Fortis Hospital, Noida. Other expenses are Rs.1,00,000/- of damages, Rs.1,50,000.00 in boarding lodging and transportation charges of the whole family from Moradabad to Delhi. After that, the complainant no.2 luckily and hardly succeeded to save the life of his son. All these happened due to the negligence of the opposite party. Due to negligence of the doctor/ opposite party the complainant no.1 & 2 with his whole family have suffered such mental torture and harassment which could not be quantified in the form of money. Therefore the complainant has prayed for compensation of Rs.10 lakhs against harassment and mental agony.
The complainant no.1 was a student of B.Tech and due to wrong advice and negligence of the opposite party his one year went into vain. The opposite party has committed deficiency in service as well as negligence in diagnosis as well as treatment and operation. The complainants are consumers of the opposite parties hence different reliefs have been claimed which are available to complainant, in the relief clause. It is most respectfully prayed that the Hon'ble Commission may graciously be pleased to allow the instant complaint against the opposite party and the opposite parties may be directed to pay Rs.2,306,000/- with interest at the rate of 18% and further the opposite party may also be directed to pay Rs.15,000/- as cost operation.
(6)The opposite party no.1 & 2 did not file their written statement and vide order dated 10.12.2021 their opportunity of filing statement has been closed. Again due to non-compliance of the court's order dated 07.01.2022, the defence of the opposite parties no.1 & 2 has been struck off vide order dated 13.02.2022. The opposite party no.3, National Insurance Company Ltd. filed a written statement after impleadment. The opposite party no.3 has stated in his written statement that the complainant must produce evidence to prove his version. Sri Sai Hospital and Fortis Hospital, Noida have not been made parties in this case. Without any expert evidence or finding of any medical board or council on the point of medical negligence of opposite parties and the complainant has given its finding which is against the evidence on record and not at all permissible in the of law.
As per the records of the opposite parties, all the management of complications were done as per standard medical protocol. It is further stated that adequate potentially tertiary level care was given by the specialised doctors/ consultants who were very closely involved to treat the patient and all the steps to take care of the patient were taken by the opposite parties. The best steps were taken by the doctors of opposite party is for immediate management and thus there is no medical negligence or deficiency in service on the part of the opposite parties. The complainants are not entitled to any relief as prayed by them and it deserves to be dismissed.
We have heard the learned counsel for the complainant Mr. Anil Kumar Mishra and learned counsel for the opposite parties Mr. Vikas Agrawal and Sri A.K. Singh. We have perused the documents, buildings and evidence on record.
(7)As the opposite parties no.1 & 2 did not file their written statement in this case and there counsel put oral submission before this court. It is admitted fact that the operation for appendix was performed by opposite parties no.1 & 2. One is concerned doctor and other is nursing home where the treatment was done. First the complainant no.1 was put under oral medication and when he did not get relief, he was admitted to the hospital on 13.03.2008 for undergoing operation. The first operation was done on the same date but at the patient did not get any relief and also suffered pain and bleeding, he was again operated on 16.03.2008. In spite of the second operation, the condition did not improve and thereafter he has been shifted to Sri Sai Hospital for further treatment. That hospital also could not handle the problem with ease thereafter they referred the complainant to some other hospital. It has also become clear that due to this operation, septicemia developed and opposite parties failed to look after the complainant after it. Ultimately the complainant was admitted in Fortis Hospital for treatment. After 10 days continuous treatment the complainant condition became normal and his life could be saved. Now first of all we have to see that what is the appendectomy, and how it is done and also causes of septicemia and other related technicalities.
An appendectomy is considered major surgery, which is defined as an operation that involves opening the body to access a body cavity where the work is to be performed, organs removed, or normal anatomy altered.
You may need an appendectomy to remove your appendix if you show symptoms of appendicitis. Appendicitis is a medical emergency. It is when your appendix becomes sore, (8) swollen, and infected. If you have appendicitis, there is a serious risk your appendix may burst or rupture.
Why Would I Need My Appendix Removed?
Sudden pain or aching around your belly button or right hip bone that worsens when you walk or move quickly.
Nausea and vomiting.
Loss of appetite.
Low-grade fever that increases as illness progresses.
Bloating and change in bowel movements (constipation or diarrhea) This image shows us the laparoscopic appendectomy and what and where is the appendix in the body.
Keyhole surgery (laparoscopy) is usually the preferred method of removing carbon,.
The operation involves making three or four small cuts (incisions) in your tummy (abdomen). Special estimates are (9) inserted, including one you that gas is bound through to inflate your abdomen - this allows the doctor to see the appendix more clearly and gives them more room to work. A laparoscope - a small tube with a light and camera, which relays images of the inside of the abdominal to a television monitor. If not surgical tools used to remove the appendix. After your appendix has been removed, dissolvable stitches may be used to close the incisions. If regular stitches are used, they will need to be removed at your GT surgery 7 to 10 days later.
Open surgery in some circumstances, keyhole surgery is not recommended and open surgery is used instead. These include - when the appendix has already burst and formed a lump called appendix mass. When the sun is not experienced in laparoscopic removal. People who have previously had open abdominal surgery.
In open surgery, a single larger is made in the lower right-hand side of the abdomen to remove the appendix. When there is widespread infection of the inner lining of the abdominal (peritonitis), it's sometimes necessary to operate through a cut along the middle of the abdomen. This procedure is called laparotomy.
As with keyhole surgery the incision is closed using either dissolvable stitches or regular stitches that need to be removed at a later date of after both types of surgery, the removed appendix is sent to a laboratory to check for signs of cancer. This is precautionary measure and it is rare for a serious problem to be found.
So operation of appendix is not a serious one but it may (10) become serious if done negligently/carelessly. We have seen the surgical report of Fortis Hospital . In this report against the heading of diagnosis, it has been written "post-operative case of Appendicectomy, Exploraterylaparotomy with septicaemia" what is exploratory laparotomy ?When you have abdominal surgery, it's usually for a specific purpose. You may need to have your appendix removed or a hernia repaired, for example. The surgeon makes the appropriate incision and goes to work on that particular problem.
Sometimes, the cause of abdominal pain or other abdominal symptoms isn't clear. This may occur despite thorough testing or, in an emergency situation, because there's no time for tests. That's when a doctor may want to perform exploratory laparotomy.
The purpose of this surgery is to explore the entire abdominal cavity to find the source of the problem. If the surgeon can identify the problem, any necessary surgical treatment can take place right away.
What is septicaemia?
Septicemia, or sepsis, is the clinical name for blood poisoning by bacteria. It is the body's most extreme response to an infection. Sepsis that progresses to septic shock has a death rate as high as 50%, depending on the type of organism involved. Sepsis is a medical emergency and needs urgent medical treatment. Without treatment, sepsis can quickly lead to tissue damage, organ failure, and death.
Now we see the present case. In the case affidavits of Smt. Urmesh, mother of Sachin Chowdhary, Ishwar Chandra who went to Dr. Ashok Kumar's Hospital for seeing the (11) condition of Sachin Chowdhary, Vipin Kumar and Khampal Singh both of them donated blood for the treatment of Sachin Chowdhary and went to the hospital of Dr. Ashok Kumar, Virendra Kumar Sharma went to the Dr. Ashok Kumar's nursing home to see Sachin Chowdhary. All these persons have stated about the negligence shown in the said nursing home. No counter affidavit filed against these persons. The complainant also filed his evidence in the form of affidavit in which he supported his case. In his affidavit he has stated that opposite party has without having operation facility, equipments and ICU, operated the patient and left the patient in hands of incompetent staff resulting negligence of post-operative care clinical septicaemia developed and the complainant suffered huge loss and mental pain. He has also stated that the opposite party has committed mistake, severe negligence and shown deficiency in service in the treatment of the patient.
When the patient was taken to Fortis Hospital, and discharged after successful treatment, there is discharge summary of the Fortis Hospital on record which is of 26 March 2008. According to it the patient was admitted on 18 March 2008 and was discharged on 26 March 2008. In the column of diagnosis it has been written "post-operative case of appendicectomy, exploratory laparotomy with septicaemia." In the column of past history it has been written "Appendicectomy on 13/03/2008 , Exploratory Laparotomy on 16/03/2008" . In the column of present illness, it has been written "presented with pain abdomen, distension of abdomen, decreased urine output. Patient was operated (12) Appendicectomy was done on 13/03/2008 at Sai Hospital, Moradabad , he developed haemorrhagic drainage from abdominal drain, exploratory laparotomy was done on 16/03/2008 at Sai Hospital , Moradabad, in due course the patient developed septicaemia, then patient was shifted to Fortis Hospital, Noida for further management."
So in the present case it is clear that the complainant no. 1 consultant doctor opposite party regarding pain in the stomach for the first time on 31.01.2008 after paying a fee of Rs.200. When the complainant did not get any relief, he again visited the doctor opposite party on 07.03.2008 and opposite party prescribed some medicines. The complainant did not get any relief permanently so he again consulted the doctor opposite party 13.02 3008 when the doctor told him that he suffered from problem of appendix which requires to be removed. Thereafter the complainant visited the doctor many times and ultimately he was admitted in the hospital on 13.03.2008 and operation was performed on the same day. On 14.03.2008 patient felt pain and there was excessive bleeding. He was examined by doctor but the condition did not improve. On 15 March 2008 dressing was done but the doctor failed to understand that a mistake has been occurred during operation. On 16th March 2008, the complainant was asked to arrange blood and thereafter second operation was done. In spite of the second operation the condition did not improve. Thereafter the opposite party advised the complainant to take the patient to Sri Sai Hospital for ventilator. On 17th March 2008 the patient was shifted to Sri Sai Hospital but the condition of the patient was continuously deteriorating. On 18 (13) March 2008 the complainant was told that the condition of the patient is critical therefore he is advised to shift the patient to Delhi. Thereafter the patient was shifted to Fortis Hospital, Noida. The discharge summary of Fortis Hospital Noida has been discussed earlier.
Now the first question arises as to what were those conditions under which the opposite party forced to operate the complainant second time? If the operation for appendix has been done with due care and caution, there was no need to operate second time. It clearly shows that something adverse has happened in the operation for the first time, that is why the opposite party operated the complainant second time, and even after that they failed to manage the post-operative management properly and cautiously. Why did septicaemia occur? No plausible explanation has been put forward by the opposite party. It is said that the circumstances speak themselves. In this case after going through all the events which happened from the very beginning till discharge from Fortis Hospital, Noida, speak its story.
Now let us see the oath taken be a doctor before entering the nobel profession of the Medical World. As per guidelines of MCI, Every member should get it framed in his or her office it should never be violated in its letter and spirit.
"I solemnly pledge myself to consecrate my life to service of humanity.
Even under threat, I will not use my medical knowledge contrary to the laws of Humanity.
I will maintain the utmost respect for human life from the time of conception.(14)
I will not permit considerations of religion, nationality, race, party politics or social standing to intervene between my duty and my patient.
I will practice my profession with conscience and dignity.
The health of my patient will be my first consideration.
I will respect the secrets which are confined in me.
I will give to my teachers the respect and gratitude which is their due.
I will maintain by all means in my power, the honour and noble traditions of medical profession.
I will treat my colleagues with all respect and dignity.
I shall abide by the code of medical ethics as enunciated in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002.
I make these promises solemnly, freely and upon my honour."
The complexity of the human body and the uncertainty involved in the medical procedure are of such great magnitude that it is impossible for a Doctor to guarantee a successful result; and the only assurance that he can give, or can be understood to have given by implication is that he is possessed of requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his skills with reasonable competence. An ordinary physician or surgeon is not expected to be either a clodhopper or feckless practitioner of profession, as much as, he is not expected to be a paragon, combining qualities of polymath or prophet as in the realm of (15) diagnosis and treatment, there is ample scope for genuine difference of opinion; and a Doctor cannot be treated as negligent merely because his conclusion differs from that of other persons in the profession, or because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care. Furthermore, a golden principle of law has been laid down by the Hon'ble Apex Court in Jacob Mathew Vs. State of Punjab, (AIR 2005 SC 3180) that no sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitor is not an universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors, else it would be counter productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per-se by applying the doctrine of res ipsa loquitor. Yet, another golden principle of law has been laid down by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. Santha's III (1995) CPJ 1 (SC) at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence (16) in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, it has been observed in Malay Kumar Ganguli's case (AIR 2010 SC 1162) that" charge of professional negligence on a medical person is a serious one as it affects his professional statusand reputation and as such, the burden of proof would be more onerous. A doctor cannot be held negligent only because something has gone wrong. He also cannot be held liable for mischance or misadventure or for an error in judgment in making a choice when two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis." In the instant matter, thus a simple test, in the light of aforesaid observations, needs to be conducted in order to ascertain whether the Doctor is guilty of any tortious act of negligence/battery amounting to deficiency in conducting a surgery in the delivery of child and not properly attending the patient, the complainant and consequently, liable to pay damages for leaving cotton mass in the abdomen / stomach due to failure in surgery and deteriorating condition of the patient.
(17)Now, it is required to be seen whether an expert report is necessary in each and every case relating to medical negligence or not ? It has been observed by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. Santha III (1995) CPJ 1 (SC) at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, in B. Krishna Rao Vs. Nikhil Super Speciality Hospital 2010 (V) SCC513 at para 40 the Hon'ble Apex Court was pleased to hold that it is not necessary to have opinion of the expert in each and every case of medical negligence. The Hon'ble Apex Court was pleased to further hold in Nizam Institute of Medical Sciences Vs. Prashant S. Dhananka and others 2009 (VI) SCC 1 that "in a case of medical negligence, once initial burden has been discharged by the complainant by making of a case of negligence on the part of the hospital or the doctor (18) concerned, the owner then shifts on the hospital or to the attending doctors and it is for the hospital to satisfy the court that there was no lack of care or diligence".
A doctrine or rule of evidence in tort law that permits an inference or presumption that a defendant was negligent in an accident injuring the plaintiff on the basis of circumstantial evidence if the accident was of a kind that does not ordinarily occur in the absence of negligencea plaintiff who establishes the elements of res ipsa loquitur can withstand a motion for summary judgment and reach the jury without direct proof of negligence-- Cox v. May Dept. Store Co., 903 P.2d 1119 (1995).
In Byrne vs Boadle, this maxim was used for the first time where the complainant was injured by a barrel that dropped from the window of the defendant. In the abovementioned case, Pollock, C. B., said "here are many incidents from which no presumption of negligence can arise, but this is not true in every case. It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out and I think that such a case will, beyond all doubt, afford prima facie proof of negligence."
This doctrine intends to help direct the court proceedings to a conclusion, especially if it is established through the implication of this doctrine's rule that the injury caused to the claimant would not have occurred or taken place if the defendant wasn't negligent.This also gives enough cause and evidence to hold the defendant liable for his negligent actions.
The thing speaks for itselfis the gist of the maxim Res Ipsa Loquitur Maxim. What are the essentials of this maxim.
(19)The injury caused to the plaintiff shall be a result of an act of negligence.
There is a lack of evidence, or the evidence presented before the court is insufficient to establish the possibilities of the fault of the plaintiff or third party.
The defendant owes a duty of care towards the plaintiff, which he has breached.
There is a significant degree of injury caused to the plaintiff.
Applicability of Doctrine of Res Ipsa Loquitur.
The maxim of res ipsa loquitur came into force to benefit the plaintiff as he can use circumstantial evidence to establish negligence.
Consequently, it shifts the burden of proof on the defendant, logic being, where there is an event of unexplained cause, usually, the one that does not occur without the defendant's negligence in controlling the action which has caused the injury to the claimant or destroyed his goods.
In this scenario, the court shall presume negligence on the part of the defendant in such a case unless it includes an appropriate explanation compatible with his taking reasonable care.
In Achutrao Haribhau Khodwa and Others vs. State of Maharashtra and Others, it was considered that the maxim should not be applied in the case of general incidences of neglect and shall only be reflected when there is a significant degree of injury caused.
Section 106 of the Indian Evidence Act (20) Section 106 of the Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Res ipsa loquitur is a Latin phrase that means "the thing speaks for itself." In personal injury law, the concept of res ipsa loquitur (or just "res ipsa" for short) operates as an evidentiary rule that allows plaintiffs to establish a rebuttable presumption of negligence on the part of the defendant through the use of circumstantial evidence.
This means that while plaintiffs typically have to prove that the defendant acted with a negligent state of mind, through res ipsa loquitur, if the plaintiff puts forth certain circumstantial facts, it becomes the defendant's burden to prove he or she was not negligent.
Res Ipsa Loquitur and Evidence Law Accidents happen all the time, and the mere fact that an accident has occurred doesn't necessarily mean that someone's negligence caused it. In order to prove negligence in a personal injury lawsuit, a plaintiff must present evidence to demonstrate that the defendant's negligence resulted in the plaintiff's injury. Sometimes, direct evidence of the defendant's negligence doesn't exist, but plaintiffs can still use circumstantial evidence in order to establish negligence.
Circumstantial evidence consists of facts that point to negligence as a logical conclusion rather than demonstrating it outright. This allows judges and juries to infer negligence based on the totality of the circumstances and the shared knowledge that arises out of human experience. Res ipsa is one type of circumstantial evidence that allows a reasonable (21) fact finder to determine that the defendant's negligence caused an unusual event that subsequently caused injury to the plaintiff.
This doctrine arose out of a case where the plaintiff suffered injuries from a falling barrel of flour while walking by a warehouse. At the trial, the plaintiff's attorney argued that the facts spoke for themselves and demonstrated the warehouse's negligence since no other explanation could account for the cause of the plaintiff's injuries.
As it has developed since then, res ipsa allows judges and juries to apply common sense to a situation in order to determine whether or not the defendant acted negligently.
Since the laws of personal injury and evidence are determined at the state level, the law regarding res ipsa loquitur varies slightly between states. That said, a general consensus has emerged, and most states follow one basic formulation of res ipsa.
Under this model for res ipsa, there are three requirements that the plaintiff must meet before a jury can infer that the defendant's negligence caused the harm in question:
The event doesn't normally occur unless someone has acted negligently;
The evidence rules out the possibility that the actions of the plaintiff or a third party caused the injury; and The type of negligence in question falls with the scope of the defendant's duty to the plaintiff.
As mentioned above, not all accidents occur because of someone else's negligence. Some accidents, on the other (22) hand, almost never occur unless someone has acted negligently.
Going back to the old case of the falling flour-barrel, it's a piece of shared human knowledge that things don't generally fall out of warehouse windows unless someone hasn't taken care to block the window or hasn't ensured that items on the warehouse floor are properly stored. When something does fall out of a warehouse window, the law will assume that it happened because someone was negligent.The second component of a res ipsa case hinges on whether the defendant carries sole responsibility for the injury. If the plaintiff can't prove by a preponderance of the evidence that the defendant's negligence cause the injury, then they will not be able to recover under res ipsa.
States sometimes examine whether the defendant had exclusive control over the specific instrumentality that caused the accident in order to determine if the defendant's negligence caused the injury. For example, if a surgeon leaves a sponge inside the body of a patient, a jury can infer that the surgeon's negligence caused the injury since he had exclusive control over the sponges during the operation.
In addition to the first two elements, the defendant must also owe a duty of care to protect the plaintiff from the type of injury at issue in the suit. If the defendant does not have such a duty, or if the type of injury doesn't fall within the scope of that duty, then there is no liability.
For example, in many states, landowners don't owe trespassers any duty to protect them against certain types of dangers on their property. Thus, even if a trespasser suffers an (23) injury that was caused by the defendant's action or inaction and that wouldn't normally occur in the absence of negligence, res ipsa loquitur won't establish negligence since the landowner never had any responsibility to prevent injury to the trespasser in the first place.
Res ipsa only allows plaintiffs to establish the inference of the defendant's negligence, not to prove the negligence completely. Defendants can still rebut the presumption of negligence that res ipsa creates by refuting one of the elements listed above.
For example, the defendant could prove by a preponderance of the evidence that the injury could occur even if reasonable care took place to prevent it. An earthquake could shake an item loose and it could fall out of the warehouse window, for instance.
A defendant could also demonstrate that the plaintiff's own negligence contributed to the injury. To go back to the flour-barrel example, if the defendant shows that the plaintiff was standing in an area marked as dangerous it could rebut the presumption of negligence created by res ipsa.
Finally, the defendant could establish that he did not owe the plaintiff a duty of care under the law, or that the injury did not fall within the scope of the duty owed. For example, if the law only imposes a limited duty on the defendant not to behave recklessly, then res ipsa will not help the plaintiff by creating an inference of negligence since a negligent action would not violate the duty owed to the plaintiff.
According to the Blacks Law Dictionary the maxim is defined as the doctrine providing that, in some circumstances, (24) the mere fact of accidents occurrence raises an inference of negligence so as to establish a prima facie (at first sight) case. It is a symbol for that rule that the fact of the occurrence of an injury taken with the surrounding circumstances may permit an inference or recipes omission of negligence, or make out a plaintiff's prima facie case and present a question of fact for defendant to meet with and explanation. It is merely a short way of saying that the circumstances attendant on the accident are of such a nature to justify a jury in light of common sense and past experience in inferring that the accident was probably the result of the defendant's negligence, in the absence of explanation or other evidence which the jury believes.
Its use in clinical negligence gained some traction before Bolam and Bolitho. Mahon v Osborne [1939] 1 All ER 535, is an early example of the application of res ipsa loquitur in a case where a surgical swab had been left inside a patient's body.
In Clarke v Worboys (1952) Times, 18 March, CA, a patient noticed burns on her buttock shortly after surgical excision of a breast tumour. The surgery involved cauterisation. The Court of Appeal held that this was a case where res ipsa loquitur applied. The outcome was not one that would ordinarily occur in the absence of negligence, and the surgical team were unable to explain how the injury was caused.
In Cassidy v Ministry of Health [1951] 2 KB 343, Denning LJ succinctly summarised the maxim's application to clinical negligence cases: "I went into hospital to be cured (25) of two stiff fingers. I have come out with four stiff fingers and my hand is useless. That should not happen if due care had been used. Explain it if you can."
Ng Chun Pui Vs Lee Chuen Tat, the first defendant was driving a coach owned by the second defendant westwards in the outer lane of dual carriageway in Hong Kong. Suddenly the course across the central reservation and collided with a public bus travelling in the inner lane of the other carriageway, killing one passenger in the bus and injuring the driver and three others on the bus. The plaintiff could not prove that the defendants were negligent and had caused the accident. They however proceeded on the basis of Res Ipsa Loquitur and shifted the onus on the defendants to prove that they were not negligent. However, they failed to do so. And the judicial committee of the Privy Council held the defendants liable for the plaintiffs injuries. { MarkLuney and Ken Opliphant, Tort Law Text And Materials (Oxford University Press, New York, 2000) pp 173-175 } In A.S. Mittal &Anr Vs State Of UP &Ors , AIR 1979 SC 1570 , the defendants had organised an eye camp at Khurja along with the Lions Club. 88 low risk cataract operations were undertaken during the period of the camp. It was however, disastrous as many of those who had been operated upon lost their eyesight due to post medical treatment. Proceedings against the government initiated for negligence of the doctors. Damages worth Rs.12,500/- were paid as interim belief to each of the aggrieved. The decision was on the basis of Res Ipsa Loquitur as the injury would not (26) have occurred had the doctors not been negligent in not having followed up with post-operation treatment. Res Ipsa Loquitur can be applied in matters where are the procedures have not been followed and is not just limited to the commission of an act.
We can define 'Medical negligence' as the improper or unskilled treatment of a patient by a medical practitioner. This includes negligence in taking care from a nurse, physician, surgeon, pharmacist, or any other medical practitioner. Medical negligenceleads to 'Medical malpractices' where the victims suffer some sort of injury from the treatment given by a doctor or any other medical practitioner or health care professional.
Medical negligence can occur in different ways. Generally, it occurs when a medical professional deviates from the standard of care that is required.
So, we can say that any kind of deviation from the accepted standards of medication and care is considered to be medical negligence and if it causes injury to a patient then the doctor who operated on him, other staff and/or hospital may be held liable for this.
Some of the common categories of medical negligence are as follows:
Wrong diagnosis - When someone goes to a hospital, clinic or medical room, etc. the first step after admittance is the diagnosis. Diagnosing symptoms correctly is critical and important to provide medical care to any patient. However, if a (27) patient is not treated properly due to any mistake in diagnosis, the doctor can be made liable for any further injury or damages caused as a result of the wrong diagnosis.
Delay in diagnosis - A delayed diagnosis is treated as medical negligence if another doctor would have reasonably diagnosed the same condition in a timely fashion. A delay in diagnosis can cause undue injury to the patient if the illness or injury is left to worsen with time rather than being treated. Obviously, any delay in the identification and treatment of an injury can reduce the chance of recovery for the patient.
Error in surgery - Surgical operations require an enormous level of skill and it should be done with due care and caution because even the slightest mistakes can have profound effects on the patient. The wrong-site surgery, lacerations of any internal organ, severe blood loss, or a foreign object being left in the body of the patients, all this comes under Surgical error.
Unnecessary surgery - Unnecessary surgery is usually associated with the misdiagnosis of patient symptoms or a medical decision without proper consideration of other options or risks. Alternatively, sometimes surgery is chosen over conventional treatments for their expediency and ease compared to other alternatives.(28)
Errors in the administration of anesthesia - Anesthesia is a risky part of any major medical operation and requires a specialist (anesthesiologist) to administer and monitor its effect on the patient. Prior to any medical procedure requiring anesthesia, the anesthesiologist has to review the patient's condition, history, medications, etc. to determine the most suitable of all the medicine to use. Anesthesia malpractice can happen even during the pre-operation medical review or during the procedure itself.
Childbirth and labor malpractice - Childbirth is a difficult event for a woman and it becomes worse if not handled properly by the doctors and nurses. There are many instances of medical negligence during childbirth including the mishandling of a difficult birth, complications with induced labor, misdiagnosis of a newborn medical condition, etc. Long-Term negligent treatment - Medical negligence can also occur in subtle ways over the course of a long treatment period. Usually, the negligence can take the shape of a failure to follow up with treatment, or a doctor's failure to monitor the effects of the treatment properly.
A standard of care specifies the appropriate treatment and medication procedure as per the requirements that should be taken into account by a doctor while providing the treatment to his patients. The care should not be of the highest degree nor the lowest.Here, the degree means the level of care (29) an ordinary health care professional, with the same training and experience, would render in similar circumstances in the same community. This is the critical question in medical malpractice cases and if the answer is "no," and you suffered injury as a result of the poor treatment, you may file a suit for medical malpractice.
In the case of Dr. Laxman Balkrishna Joshi Vs. Dr. TrimbakBapu Godbole and Anr.[ 1969 AIR 128], the Supreme Court held that a doctor has certain aforesaid duties and a breach of any of those duties can make him liable for medical negligence. A doctor is required to exercise a reasonable degree of care that is set for this profession.
Dr. Kunal Saha vs Dr. Sukumar Mukherjee on 21 October, 2011 ( NC) original petition number 240 OF 1999 is one of the most important case regarding medical negligence. The brief facts of the case are-
Toxic Epidermal Necrolysis ( TEN ) is a rare and deadly disease. It is an extoliative dermatological disorder of unknown cause. A patient with TEN loses epidermis in sheet-like fashion leaving extensive areas or denuded dermis that must be treated like a larze, superficial, partial-thickness burn wound. The incidence of TEN has been reported at 1 to 1.3 per million per year. The female-male ratio is 3:2. TEN accounts for nearly 1% of drug reactions that require hospitalization. TEN has a mortality rate of 25 to 70%.
Smt. Anuradha Saha (in short Anuradha), aged about 36 years wife of Dr. Kunal Saha (complainant) became the unfortunate victim of TEN when she alongwith the complainant was in India for a holiday during April-May (30) 1998. She and the complainant although of Indian original were settled in the United States of America. The complainant is a doctor by profession and was engaged in research on HIV / AIDS for the past fifteen years. Anuradha after acquiring her Graduation and Masters Degree was pursuing a Ph.D. programme in a university of U.S.A. She was a Child Psychologist by profession. Anuradha showed certain symptoms of rashes over her body and received treatment at the hands of Opposite Parties and some other doctors as outdoor patient uptil 10.05.1998 and she was admitted in Advanced Medicare and Research Institute Limited, Calcutta (for short, AMRI), on 11.05.1998, where she was treated by the above-named Opposite Parties and other doctors uptil 16.05.1998. As there was no improvement in her condition, she was shifted to Breach Candy Hospital, Mumbai, on 17.05.1998 by an air ambulance. She was treated in Breach Candy Hospital from 17.05.1998 evening till she breathed her last on 28.05.1998.
Our Complainant as husband of Anuradha felt that the doctors who treated Anuradha and the hospitals where she was treated were grossly negligent in her treatment and her death was occasioned due to gross negligence of the treating doctors and hospitals. Complainant, accordingly, got issued a legal notice to as many as 26 persons i.e. various doctors who treated Anuradha between end of April to the date of her death alleging negligence and deficiency in service on their part and claiming a total compensation exceeding Rs.55 crores from them. Complainant, thereafter filed the present complaint on 09.03.1999 before this Commission claiming a (31) total compensation of Rs. Rs.77,07,45,000/- ( Seventy Seven Crores Seven Lakhs Fourty Five Thousand only). Later he also filed another complaint no. 179 of 2000 in this Commission against Breach Candy Hospital, its doctors and functionaries claiming a further compensation of Rs.25.30 crore ( though the said complaint was later on withdrawn), thereby making claim of compensation exceeding Rs.102 crores, perhaps the highest ever claimed by any complainant for medical negligence before any consumer fora established under the provisions of Consumer Protection Act, 1986 ( in short, the Act). These are some of the facts which make the present case extra ordinary.
The present complaint was filed by the complainant against the above-named opposite parties, namely, Dr. Sukumar Mukherjee, Dr. B. Haldar (Baidyanath Halder), Advanced Medicare and Research Institute Limited ( in short the AMRI Hospital ) and Dr. Balram Prasad and Dr.Abani Roy Chowdhury (physician) and Dr.KaushikNandy (plastic surgeon), the Directors of the AMRI Hospital and others claiming a total compensation of Rs. Rs.77,07,45,000/- under different heads alleging various acts of commission and omission on the part of the doctors and hospital amounting to negligence and deficiency in service. Complainant through his brother-in-law Malay Kumar Ganguly also filed criminal complaint against some of the doctors and the hospital under section 304A IPC.
The complaint was resisted by the doctors and the hospital on a variety of grounds thereby denying any medical negligence or deficiency in service on their part. Parties led (32) voluminous documentary and oral evidence and testimonies of some of the witness were even recorded through video conferencing through a Local Commissioner. After a protracted trial and hearing and on consideration of the evidence and material so produced on record and taking note of the legal position governing the question of medical negligence, this Commission ( by a three Member Bench presided over by the then President) dismissed the complaint by an order dated 01.06.2006 holding as under:
In the result, we reiterate that Doctors or Surgeons do not undertake that they will positively cure a patient. There may be occasions beyond the control of the medical practitioner to cure the patients. From the record, it would be difficult to arrive at the conclusion that the injection Depo-Medrol prescribed by Dr. Mukherjee was of such excessive dose that it would amount to deficiency in service by him which was his clinical assessment.
Thereafter, with regard to the alleged deficiency in the treatment given to Mrs. Anuradha by Opposite Party Doctors 2, 3, 5 and 6, there is no substance. The contention against the hospital that it was not having Burns-Ward, and therefore, the deceased suffered is also without substance. Hence, this complaint is dismissed. There shall be no order as to costs.
Aggrieved by the dismissal of his complaint, the complainant filed Civil Appeal (No.1727 of 2007) in the Honble Supreme Court. It would appear that even before the said appeal was filed before the Hon'ble Supreme Court, the Supreme Court was seized of the matter in Criminal Appeal Nos.1191-94 of 2005 filed by Malay Kumar Ganguly, the (33) complainant in the criminal complaint, against the Orders passed by the Calcutta High Court. Since the Criminal Appeals and the Civil Appeal filed by the complainant in the present complaint raised the same questions of fact and law, the Hon'ble Supreme Court heard all the appeals together and decided the same by means of a detailed judgment dated 07.8.2009. By the said order, the Apex Court dismissed the Criminal Appeals filed by Shri Malay Kumar Ganguly but allowed the Civil Appeal No. 1727 of 2007 filed by the complainant and set aside the order dated 01.6.2006 passed by this Commission dismissing the complaint and remanded the matter to this Commission for the limited purpose of determining the adequate compensation, which the complainant is entitled to receive from the subsisting opposite parties by observing as under:
So far as the judgment of the Commission is concerned, it was clearly wrong in opining that there was no negligence on the part of the Hospital or the doctors. We, are, however, of the opinion, keeping in view the fact that Dr.KaushikNandy has done whatever was possible to be done and his line of treatment meets with the treatment protocol of one of the experts viz.. Prof. Jean Claude Roujeau although there may be otherwise difference of opinion, that he cannot be held to be guilty of negligence.
We remit the case back to the Commission only for the purpose of determination of the quantum of compensation. We, keeping in view the stand taken and conduct of AMRI and Dr. Mukherjee, direct that costs of Rs.5,00,000 and Rs.1,00,000 would be payable by AMRI and Dr. Mukherjee respectively.(34)
We further direct that if any foreign experts are to be examined it shall be done only through video conferencing and at the cost of the respondents.
Summary In view of the foregoing discussion, we conclude as under:
The facts of this case viz., residence of the complainant and Anuradha (deceased) in USA and they working for gain in that country; Anuradha having been a victim of a rare and deadly disease Toxic Epidermal Necrolysis (TEN) when she was in India during April-May 1998 and could not be cured of the said disease despite her treatment at two superspeciality medical centres of Kolkata and Mumbai and the huge claim of compensation exceeding Rs.77 crores made by the complainant for the medical negligence in the treatment of Anuradha makes the present case somewhat extraordinary.
The findings given and observations made by the Supreme Court in its judgment dated 07.08.2009 are absolutely binding on this Commission not only as ratio decidendi but also as obiter dicta also, the judgment having been rendered by the Supreme Court in appeal against the earlier order passed by a three Member Bench of this Commission and, therefore, no attempt can be allowed to read down / dilute the findings and observations made by the Supreme Court because the Supreme Court has remitted the complaint to this Commission only for the purpose of determination of the quantum of compensation after recording the finding of medical negligence against the opposite parties and others.(35)
The task entrusted to the Commission may appear to be simple but the facts of the present case and the voluminous evidence led on behalf of the complainant has made it somewhat arduous. Still difficult was the task of apprortionment of the liability to pay the awarded amount by the different opposite parties and perhaps it was for this reason that the Supreme Court has remitted the matter to this Commission.
Multiplier method provided under the Motor Vehicles Act for calculating the compensation is the only proper and scientific method for determination of compensation even in the cases where death of the patient has been occasioned due to medical negligence / deficiency in service in the treatment of the patient, as there is no difference in legal theory between a patient dying through medical negligence and the victim dying in industrial or motor accident. The award of lumpsum compensation in cases of medical negligence has a great element of arbitrariness and subjectivity.
The foreign residence of the complainant or the patient and the income of the deceased patient in a foreign country are relevant factors but the compensation awarded by Indian Fora cannot be at par which are ordinarily granted by foreign courts in such cases. Socio economic conditions prevalent in this country and that of the opposite parties / defendants are relevant and must be taken into consideration so as to modulate the relief. A complainant cannot be allowed to get undue enrichment by making a fortune out of a misfortune. The theoretical opinion / assessment made by a Foreign Expert as to the future income of a person and situation (36) prevalent in that country cannot form a sound basis for determination of future income of such person and the Commission has to work out the income of the deceased having regard to her last income and future prospects in terms of the criteria laid down by the Supreme Court.
There exists no straight jacket formula for apportionment of the awarded compensation amongst various doctors and hospitals when there are so many actors who are responsible for negligence and the apportionment has to be made by evolving a criteria / formula which is just going by the nature and extent of medical negligence and deficiency in service established on the part of different doctors and hospitals.
On a consideration of the entirety of the facts and circumstances, evidence and material brought on record, we hold that overall compensation on account of pecuniary and non pecuniary damages works out to Rs.1,72,87,500/- in the present case, out of which we must deduct 10% amount on account of the contributory negligence / interference of the complainant in the treatment of Anuradha. That will make the net payable amount of compensation to Rs.1,55,58,750/- (rounded of to Rs.1,55,60,000/-). From this amount, we must further deduct a sum of Rs.25,93,000/- which was payable by Dr. Abani Roy Chowdhury (deceased) or his Legal Representative as the complainant has forgone the claim against them.
In view of the peculiar facts and circumstances of the case and as a special case, we have awarded a sum of Rs. 5,00,000/- as cost of litigation in the present proceedings.(37)
The above amount shall be paid by opposite parties no.1 to 4 to the complainant in the following manner:
(i) Dr. Sukumar Mukherjee-opposite party no.1 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation].
(ii) Dr. B. Haldar (Baidyanth Halder)-opposite party no.2 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation]
(iii) AMRI hospital-opposite party no.3 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only ) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation .
(iv) Dr. Balram Prasad-opposite party no.4 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation] The opposite parties are directed to pay the aforesaid amounts to the complainant within a period of eight weeks from the date of this order, failing which the amount shall carry interest @ 12% p.a. w.e.f. the date of default.
Immediate postoperative care:
Postoperative patients must be monitored and assessed closely for any deterioration in condition and the relevant postoperative care plan or pathway must be implemented.
The NCEPOD (2011) report found that patients whose condition was deteriorating were not always identified and referred for a higher level of care. Patients should be made as (38) comfortable as possible before postoperative checks are performed.
Postoperative patients are at risk of clinical deterioration, and it is vital that this is minimised. Knowledge and understanding of the key areas of risk and local policies will help reduce potential problems (National Patient Safety Agency, 2007; National Institute for Health and Clinical Excellence, 2007).
Track and trigger or early warning systems are widely used in the UK to identify deteriorating patients. These have been adapted by trusts for adults and children and are based on the patient's pulse and respiratory rate, systolic blood pressure, temperature and level of consciousness. Additional monitoring may include pain assessment, capillary refill time, percentage of oxygen administered, oxygen saturation, central venous pressure, infusion rates and hourly urine output.
The National Early Warning Score (NEWS) was developed by a working party to provide a national standard for assessing, monitoring and tracking acutely and critically ill patients (not for use with children under 16 years or in pregnancy); the intention was that trusts would use it to replace their locally adapted early warning systems (Royal College of Physicians, 2012). Like other early warning systems, NEWS has six physiological parameters:
Respiratory rate;
Oxygen saturation;
Temperature;
Systolic blood pressure;
Pulse rate;(39)
Level of consciousness (this will be impaired in patients who have had recent sedation or are receiving opioid analgesia, which should be taken into consideration in assessment).
The system also includes a weighting score of two, which is added if the patient is receiving supplemental oxygen via a mask or nasal cannulas.
When assessing the postoperative patient using NEWS, it is vital that the patient is observed for signs of haemorrhage, shock, sepsis and the effects of analgesia and anaesthetic. Patients receiving intravenous opiates are at risk of their vital signs and consciousness levels being compromised if the rate of the infusion is too high. It is therefore imperative that the patient's pain control is managed well, initially by the anaesthetist and then the ward staff and pain team or anaesthetist, to ensure that the patient has adequate analgesia but is alert enough to be able to communicate and cooperate with clinical staff in the postoperative period.
Many trusts have yet to implement NEWS, although it is beginning to be taught in pre-registration nursing programmes. Student nurses frequently perform postoperative observations under the supervision of a nurse; it is reassuring that they receive some insight and education as recommended by NCEPOD (2011).
Vital signs;
Vital signs should be performed in accordance with local policies or guidelines and compared with the baseline observations taken before surgery, during surgery and in the recovery area.(40)
Nurses should also be aware of the parameters for these observations and what is normal for the patient under observation. When assessing patients' recovery from anaesthesia and surgery, these observations should not be considered in isolation; the nurse should look at and feel the patient. This also applies to children and should include observation of other signs and symptoms, for example abdominal tenderness or poor urine output, which could indicate deterioration (Royal College of Nursing, 2011). The RCN (2011) provides guidance on vital signs performed post-operatively on children. Many trusts now insist that vital signs are performed manually to provide more accurate recording and assessment.
All vital signs and assessments should be recorded clearly in accordance with guidelines for record keeping (Nursing and Midwifery Council, 2009). Handheld personal digital assistants (PDAs) are used at some trusts to store track and trigger data and calculate early warning scores, which can be accessed by the clinical and outreach teams.
When a patient's condition is identified as deteriorating, this information can be passed verbally to appropriate health professionals using the Situation, Background, Assessment and Recommendation (SBAR) tool advocated by the NHS Institute for Innovation and Improvement (2008).
Airway and respirations Respiratory rate and function is often the first vital sign to be affected if there is a change in cardiac or neurological state. It is therefore imperative that this observation is performed accurately; however, studies show it is often omitted or poorly assessed (NPSA, 2007; NCEPOD, 2005).(41)
Nurses should observe and record the following:
Airway;
Respiratory rate (regular and effortless), rhythm and depth (chest movements symmetrical);
Respiratory depression: indicated by hypoventilation or bradypnoea, and whether opiate-induced or due to anaesthetic gases.
Oxygen therapy Oxygen is administered to enable the anaesthetic gases to be transported out of the body, and is prescribed when patients have an epidural, patient-controlled analgesia or morphine infusion. Nurses should ensure and record the following:
Oxygen therapy is prescribed;
Oxygen is administered at correct rate;
Continuous oxygen therapy is humidified to prevent mucous membranes from drying out;
The skin above the ears is protected from elastic on the mask.
Pulse oximetry Oxygen saturation should be above 95% on air, unless the patient has lung disease, and maintained above 95% if oxygen therapy is prescribed to prevent hypoxia or hypoxaemia. An abnormal recording may be due to shivering, peripheral vasoconstriction or dried blood on the finger.
Nurses should ensure that:
The finger probe is clean;
The position of the probe is changed regularly to prevent fingers becoming sore.(42)
Heart rate, blood pressure and capillary refill time The following should be checked and recorded:
Rate, rhythm and volume of pulse;
Blood pressure;
Capillary refill time to assess circulatory status, along with the colour and temperature of limbs, also identifying reduced peripheral perfusion.
Particular attention should be paid to the systolic blood pressure as a lowered systolic reading and tachycardia may indicate haemorrhage and/or shock, although initially the blood pressure may not drop and will remain within normal limits as the body compensates. Tachycardia may also indicate that the patient is in pain, has a fluid overload or is anxious. Hypertension can be due to the anaesthetic or inadequate pain control.
Body temperature Children, older adults and patients who have been in theatre for a long period are at risk of hypothermia. Shivering can be due to anaesthesia or a high temperature indicative of an infection, while a drop in temperature might indicate a bacterial infection or sepsis.
Patients' temperature should be monitored closely and action taken to return it to within normal parameters.
Use a Bair Hugger (forced-air blanket) and blankets to warm the patient if their temperature is too low;
Choose an appropriate method to cool the patient if their temperature is too high (antipyretics/fanning/ tepid sponging).
Level of consciousness (43) Postoperative patients should respond to verbal stimulation, be able to answer questions and be aware of their surroundings before being transferred to the ward and throughout the postoperative period.
A change in the level of consciousness can be a sign that the patient is in shock. The AVPU scale (Box 2) is appropriate for assessing consciousness in adults, children and young people unless they have had neurosurgery (RCN, 2011).
Fluid balance The NCEPOD (2011) found, in 30% of patient data reviewed, there was insufficient recording of postoperative fluid balance. Nurses should observe/undertake and record on the fluid balance chart the following:
IV fluids (colloids and crystalloids used to replace fluid loss postoperatively) and infusions;
Oral intake;
Urine output: catheter urine measurements should not be less than 0.5ml/kg/hour. Oliguria can be a sign of hypovolaemia and should be reported to medical staff immediately. Check that the catheter is not kinked or that the patient is not lying on the tubing if urine output is reduced;
Colour of stoma (where appropriate) and whether there is any bleeding;
Nausea and vomiting: if necessary, administration of antiemetics should be checked and vomit bowls and tissues should be within easy reach of the patient;
Oral care;(44)
Nasogastric tube drainage (aspirate if patient feels nauseous unless otherwise indicated);
Colour and amount of wound drainage: large amounts of fresh blood could be an indication of haemorrhage; if there is no wound drainage, it is advisable to check that the drain has not fallen out.
Intravenous infusions The RCN (2010) and Health Protection Scotland (2012) recommend that peripheral venous catheters (PVC) are checked daily as a minimum, and consideration given to removing any PVC that has been in situ longer than 72 hours (Health Protection Scotland, 2012) or 72-96 hours (Department of Health, 2011).
A phlebitis scale can be used to help assess the PVC site; the Visual Infusion Phlebitis Scale (Jackson, 1998) is frequently used and recommended by the RCN (2010). These national guidelines should be used as resources in caring for PVCs. The following should be checked and recorded:
The PVC site when changing IV fluids, before administering IV medication;
Signs of phlebitis (redness, heat and swelling).
Conclusion The postoperative healthcare team is under constant pressure to discharge patients quickly. This can lead to vital signs being missed and result in a delay in recovery.
Patients can be discharged quickly only when they do not experience any post-operative complications, many of which can be avoided or identified with correct and thorough monitoring of signs and symptoms.(45)
All health professionals must continually update their theoretical knowledge and clinical skills; those working in post-operative care can do this by relying less on electronic equipment and developing their ability to combine the use of assessment tools with good observational skills; feeling, listening for abnormal sounds and closely observing their patients.
There are guidelines issued by World Health Organisation forPost Operative Care - these are Postoperative care Post operative note and orders The patient should be discharged to the ward with comprehensive orders for the following:
• Vital signs • Pain control • Rate and type of intravenous fluid • Urine and gastrointestinal fluid output • Other medications • Laboratory investigations The patient's progress should be monitored and should include at least:
• A comment on medical and nursing observations • A specific comment on the wound or operation site • Any complications • Any changes made in treatment Aftercare: Prevention of complications • Encourage early mobilization:
o Deep breathing and coughing o Active daily exercise o Joint range of motion o Muscular strengthening (46) o Make walking aids such as canes, crutches and walkers available and provide instructions for their use • Ensure adequate nutrition • Prevent skin breakdown and pressure sores:
o Turn the patient frequently o Keep urine and faeces off skin • Provide adequate pain control Discharge note On discharging the patient from the ward, record in the notes:
• Diagnosis on admission and discharge • Summary of course in hospital • Instructions about further management, including drugs prescribed.
Ensure that a copy of this information is given to the patient, together with details of any follow-up appointment .
(WHO/EHT/CPR: WHO Surgical Care at the District Hospital 2003 Postoperative Management) If the patient is restless, something is wrong.
Look out for the following in recovery:
• Airway obstruction • Hypoxia • Haemorrhage: internal or external • Hypotension and/or hypertension • Postoperative pain • Shivering, hypothermia • Vomiting, aspiration • Falling on the floor • Residual narcosis The recovering patient is fit for the ward when:
• Awake, opens eyes • Extubated (47) • Blood pressure and pulse are satisfactory • Can lift head on command • Not hypoxic • Breathing quietly and comfortably • Appropriate analgesia has been prescribed and is safely established (WHO/EHT/CPR: WHO Surgical Care at the District Hospital 2003 ) Post operative pain relief • Pain is often the patient's presenting symptom. It can provide useful clinical information and it is your responsibility to use this information to help the patient and alleviate suffering.
• Manage pain wherever you see patients (emergency, operating room and on the ward) and anticipate their needs for pain management after surgery and discharge.
• Do not unnecessarily delay the treatment of pain; for example, do not transport a patient without analgesia simply so that the next practitioner can appreciate how much pain the person is experiencing.
Pain management is our job.
Pain Management and Techniques • Effective analgesia is an essential part of postoperative management.
• Important injectable drugs for pain are the opiate analgesics. Nonsteroidal antiinflammatory drugs (NSAIDs), such as diclofenac (1 mg/kg) and ibuprofen can also be given orally and rectally, as can paracetamol (15 mg/kg).
• There are three situations where an opiate might be given: o Preoperatively (48) o Intraoperatively o Postoperatively • Opiate premedication is rarely indicated, although an injured patient in pain may have been given an opiate before coming to the operating room.
• Opiates given pre- or intraoperatively have important effects in the postoperative period since there may be delayed recovery and respiratory depression, even necessitating mechanical ventilation.
• Short acting opiate fentanyl is used intra-operatively to avoid this prolonged effect.
• Naloxone antagonizes (reverses) all opiates, but its effect quickly wears off.
• Commonly available inexpensive opiates are pethidine and morphine.
• Morphine has about ten times the potency and a longer duration of action than pethidine.
(continued next page) WHO/EHT/CPR: WHO Surgical Care at the District Hospital 2003) Post operative pain relief (continued) • Ideal way to give analgesia postoperatively is to:
o Give a small intravenous bolus of about a quarter or a third of the maximum dose (e.g. 25 mg pethidine or 2.5 mg morphine for an average adult) o Wait for 5-10 minutes to observe the effect: the desired effect is analgesia, but retained consciousness o Estimate the correct total dose (e.g. 75 mg pethidine or 7.5 mg morphine) and give the balance intramuscularly.
o With this method, the patient receives analgesia quickly and the correct dose is given (49) • If opiate analgesia is needed on the ward, it is most usual to give an intramuscular regimen:
¾ Morphine: - Age 1 year to adult: 0.1-0.2 mg/kg - Age 3 months to 1 year: 0.05-0.1 mg/kg ¾ Pethidine: give 7-10 times the above doses if using pethidine • Opiate analgesics should be given cautiously if the age is less than 1 year. They are not recommended for babies aged less than 3 months unless very close monitoring in a neonatal intensive care unit is available.
Anaesthesia& Pain Control in Children • Ketamine anaesthesia is widely used for children in rural centres (see pages 14-14 to 14-21), but is also good for pain control. • Children suffer from pain as much as adults, but may show it in different ways.
• Make surgical procedures as painless as possible:
o Oral paracetamol can be given several hours prior to operation o Local anaesthetics (bupivacaine 0.25%, not to exceed 1 ml/kg) administered in the operating room can decrease incisional pain o Paracetamol (10-15 mg/kg every 4-6 hours) administered by mouth or rectally is a safe and effective method for controlling postoperative pain o For more severe pain, use intravenous narcotics (morphine sulfate 0.05-0.1 mg/kg IV) every 2-4 hours o Ibuprofen 10 mg/kg can be administered by mouth every 6-8 hours o Codeine suspension 0.5-1 mg/kg can be administered by mouth every 6 hours, as needed.(50)
(WHO/EHT/CPR: WHO Surgical Care at the District Hospital 2003) therefore it is clear that post-operative careis most important in a case of Surgery. If you have no infra or paraphernalia, you are not supposed to proceed further regarding operation. In this case when you go to peruse the total cases history of the patient, it was crystal clear that the opposite parties failed to provide the required post-operative care and has shown carelessness right from the first operation, second operation and asking the patient to go to some other hospital . No doubt that the doctor performed his duty with utmost care and caution but they also showed negligence in some cases. The circumstances shows that after operation, the opposite party left the patient on the operation table ,and directed the staff and junior doctors to do further dressing and stitching. No documents, discharge summary and all the notes regarding both the above mentioned operation which have been performed in the nursing home of the opposite parties has been filed for perusal. No evidence has been shown for taking the patient for two round of operation. In the operation of appendix what complications develop after the operation which made it compulsory for second operation. In spite of second operation the opposite party failed to manage the post-operative management and miserably failed to provide life-support system to the patient. It shows that the opposite parties have no paraphernalia for the operation. This itself shows the carelessness of the opposite party and also establishes the negligence played in this case with the complainant.(51)
After service of notices, the opposite parties neither the before the court nor submitted their written statement in time as prescribed in the Consumer Protection Act . Fortune favoured the complainant otherwise there was no hope of survival.
In this case Dr. Ashok Kumar was insured for Professional Indemnity Insurance (doctors) policy is set from National Insurance Co. Ltd. for the Concerned. That Is from 24.07.2007 to 23.07.2008 vide policy number 460707/46/07/ 1700000519. Surprisingly the insurance company submitted his written statement but did not disclose as to for which amount they will indemnify the opposite parties. The insurance company only tried its best to prove that the opposite parties were not negligent and the adopted full care and caution during the operation. In this case Res Ipsa Loquitur fully applies and all the circumstances lead to the conclusion that the opposite parties are negligent. The opposite party doctor is negligent in performing the operation and in not handling the case properly with due care and caution. The nursing home was not equipped with postoperation equipments and in spite of that it permitted the opposite party Dr to perform the operation. Appendix operation is not a complex operation and despite of it the opposite party could not control the complexities which developed in the body of patient. Therefore in the present case the negligence of the opposite party has been fully established.
After considering all the facts and circumstances and the diagnosis and discharge summary of the Fortis Hospital we are of the opinion that it is a case of establish negligence.(52)
As for as the clause is concerned, all the reliefs are cannot be granted to the extent it is claimed but the mental torture and agony suffered by the complainant and his family cannot be ignored. So keeping all the circumstances in hand we are passing the judgment.
ORDER The complaint is allowed. The opposite parties jointly and severally directed to pay compensation of Rs.20 lakhs with interest at the rate of 10% per annum from 14.03.2008 till the payment of this amount. The opposite parties are also jointly and severally directed to pay Rs.15,000/- as cost of litigation. The opposite parties are directed to pay the compensation and cost within 45 days from the date of judgment of this appeal otherwise they shall be liable to pay interest at a rate of 12% per annum from 14.03.2008 till the date of its payment. The opposite party no 3 shall be liable to indemnify the opposite parties 1 & 2 to the extent they are jointly or individually insured after the payment be made by them to the complainant.
The stenographer is requested to upload this order on the Website of this Commission today itself.
Certified copy of this judgment be provided to the parties as per rules.
(Sushil Kumar) (Rajendra Singh) Member Presiding Member Judgment dated/typed signed by us and pronounced in the open court. Consign to record. (Sushil Kumar) (Rajendra Singh) Member Presiding Member Jafri, PA II Court 2 [HON'BLE MR. Rajendra Singh] PRESIDING MEMBER [HON'BLE MR. SUSHIL KUMAR] JUDICIAL MEMBER